The Volokh
Conspiracy is
a frequently-updated blog about legal issues. It reports on
interesting upcoming court cases and recent court decisions and
sometimes carries thoughtful and complex essays on legal theory. It
is hosted by, but not otherwise affiliated with, the Washington
Post.

Volokh periodically carries a “roundup of recent federal court
decisions”, each with an intriguing one-paragraph summary and a link
to the relevant documents, usually to the opinion itself. I love
reading federal circuit court opinions. They are almost always
carefully thought out and clearly-written. Even when I disagree with
the decision, I almost always concede that the judges have a point.
It often happens that I read the decision and say “of course that is
how it must be decided, nobody could disagree with that”, and then I
read the dissenting opinion and I say exactly the same thing. Then I
rub my forehead and feel relieved that I'm not a federal circuit court
judge.

This is true of U.S. Supreme Court decisions also. Back when I had
more free time I would sometimes visit the listing of all recent
decisions and
pick out some at random to read. They were almost always really
interesting. When you read the newspaper about these decisions, the
newspaper always wants to make the issue simple and usually tribal.
(“Our readers are on the (Red / Blue) Team, and the (Red / Blue) Team
loves mangel-wurzels. Justice Furter voted against mangel-wurzels,
that is because he is a very bad man who hates liberty! Rah rah
team!”) The actual Supreme Court is almost always better than this.

For example we have Clarence Thomas's wonderful
dissent
in the case of Gonzales
v. Raich. Raich was
using marijuana for his personal medical use in California, where
medical marijuana had been legal for years. The DEA confiscated and
destroyed his supplier's plants. But the Constitution only gives
Congress the right to regulate interstate commerce. This marijuana
had been grown in California by a Californian, for use in California
by a Californian, in accordance with California law, and had never
crossed any state line. In a 6–3 decision, the court found that the
relevant laws were nevertheless a permitted exercise of Congress's
power to regulate commerce. You might have expected Justice Thomas to
vote against marijuana. But he did not:

If the majority is to be taken seriously, the Federal Government may
now regulate quilting bees, clothes drives, and potluck suppers
throughout the 50 States. This makes a mockery of Madison’s
assurance to the people of New York that the “powers delegated” to
the Federal Government are “few and defined,” while those of the
States are “numerous and indefinite.”

Thomas may not be a fan of marijuana, but he is even less a fan of
federal overreach and abuse of the Commerce Clause. These nine people
are much more complex than the newspapers would have you believe.

But I am digressing. Back to Volokh's federal court roundups. I have
to be careful not to look at these roundups when I have anything else
that must be done, because I inevitably get nerdsniped and read
several of them. If you enjoy this kind of thing, this is the kind of
thing you will enjoy.

I want to give some examples, but can't decide which sound most
interesting, so here are three chosen at random from the most recent
issue:

Any nonspecific non-disclosure agreement with a horizon more than
three years off, because after three years you are not going to
remember what it was that you were not supposed to disclose.

Any contract in which you give up your right to sue the other party
if they were to cheat you.

Most contracts in which you permanently relinquish your right to
disparage or publicly criticize the other party.

Any contract that leaves you on the hook for the other party's
losses if the project is unsuccessful.

Any contract that would require you to do something immoral or unethical.

Addendum 20150401: Chas. Owens suggests, and I agree, that you not
sign a contract that gives the other party ownership of
everything you produce, even including things you created on your
own time with your own equipment.

A couple of recent specific examples:

Comcast is negotiating a contract with our homeowner's association
to bring cable Internet to our village; the proposed agreement
included a clause in which we promised not to buy Internet service
from any other company for the next ten years. I refused to sign.
The guy on our side who was negotiating the agreement was annoyed
with me. If too many people refuse to sign, maybe Comcast will back
out. “Do you think you're going to get FIOS in here in the next ten
years?” he asked sarcastically. “No,” I said. “But I might move.”

Or, you know, I might get sick of Comcast and want to go back to
whatever I was using before. Or my satellite TV provider might
start delivering satellite Internet. Or the municipal wireless might
suddenly improve. Or Google might park a crazy Internet Balloon
over my house. Or some company that doesn't exist yet might do
something we can't even imagine. Google itself is barely ten years
old! The iPhone is only eight!

In 2013 I was on a job interview at company X and was asked to sign
an NDA that enjoined me from disclosing anything I learned that day
for the next ten years. I explained that I could not sign such an
agreement because I would not be able to honor it. I insisted on
changing it to three years, which is also too long, but I am not
completely unwilling to compromise. It's now two years later and I
have completely forgotten what we discussed that day; I might be
violating the NDA right now for all I know. Had they insisted on
ten years, would I have walked out? You bet I would. You don't let
your mouth write checks that your ass can't cash.

Every so often, when I am called upon to sign some contract or
other, I have a conversation that goes like this:

Me: I can't sign this contract; clause 14(a) gives you the right to chop off my hand.

Them: Oh, the lawyers made us put that in. Don't worry about it; of course we would never exercise that clause.

There is only one response you should make to this line of argument:

Well, my lawyer says I can't agree to that, and since you say that
you would never exercise that clause, I'm sure you will have no problem
removing it from the contract.

Because if the lawyers made them put in there, that is for a reason.
And there is only one possible reason, which is that the lawyers do,
in fact, envision that they might one day exercise that clause and
chop off your hand.

The other party may proceed further with the same argument: “Look, I
have been in this business twenty years, and I swear to you that we
have never chopped off anyone's hand.” You must remember the one
response, and repeat it:

Great! Since you say that you have never chopped off anyone's hand,
then you will have no problem removing that clause from the
contract.

You must repeat this over and over until it works. The other party is
lazy. They just want the contract signed. They don't want to deal
with their lawyers. They may sincerely believe that they would never
chop off anyone's hand. They are just looking for the easiest way
forward. You must make them understand that there is no easier way
forward than to remove the hand-chopping clause.

They will say “The deadline is looming! If we don't get this contract
executed soon it will be TOO LATE!” They are trying to blame you
for the blown deadline. You should put the blame back where it
belongs:

As I've made quite clear, I can't sign this contract with the
hand-chopping clause. If you want to get this executed soon, you
must strike out that clause before it is TOO LATE.

And if the other party would prefer to walk away from the deal rather
than abandon their hand-chopping rights, what does that tell you about
the value they put on the hand-chopping clause? They claim that
they don't care about it and they have never exercised it, but they
would prefer to give up on the whole project, rather than abandon
hand-chopping? That is a situation that is well worth walking away
from, and you can congratulate yourself on your clean escape.

[ Addendum: Steve Bogart asked on Twitter for examples of unacceptable
contract demands; I thought of so many that I put them in a separate
article. ]

[ Addendum 20150401: Chas. Owens points out that you don't have to
argue about it; you can just cross out the hand-chopping clause, add
your initials and date in the margin. I do this also, but then I
bring the modification it to the other party's attention, because that
is the honest and just thing to do. ]

The weird ethics of life insurance
Many life insurance policies, including my own, include a clause that
says that they will not pay out in case of suicide. This not only
reduces the risk to the insurance company, it also removes an
important conflict of interest from the client. I own a life
insurance policy, and I am glad that I do not have this conflict of
interest, which, as I suffer from chronic depression, would only add
to my difficulties.

Without this clause, the insurance company might find itself in the
business of enabling suicide, or even of encouraging people to commit
suicide. Completely aside from any legal or financial problems this
would cause for them, it is a totally immoral position to be in, and
it is entirely creditable that they should try to avoid it.

But enforcement of suicide clauses raises some problems. The
insurance company must investigate possible suicides, and enforce the
suicide clauses, or else they have no value. So the company pays
investigators to look into claims that might be suicides, and if their
investigators determine that a death was due to suicide, the company
must refuse to pay out. I will repeat that: the insurance company has
a moral obligation to refuse to pay out if, in their best judgment,
the death was due to suicide. Otherwise they are neglecting their
duty and enabling suicide.

But the company's investigators will not always be correct. Even if
their judgments are made entirely in good faith, they will still
sometimes judge a death to be suicide when it wasn't. Then the
decedent's grieving family will be denied the life insurance benefits
to which they are actually entitled.

So here we have a situation in which even if everyone does exactly
what they should be doing, and behaves in the most above-board and
ethical manner possible, someone will inevitably end up getting
horribly screwed.

[ Addendum 20120816: It has been brought to my attention that this
post constains significant omissions and major factual errors. I will
investigate further and try to post a correction. ]

The loophole in the U.S. Constitution: recent developments
Some time ago I wrote a couple of articles [1][2]
on the famous story that
Kurt Gödel claimed to have found a loophole in the United States
Constitution through which the U.S. could have become a dictatorship. I
proposed a couple of speculations about what Gödel's loophole
might have been, and reported on another one by
Peter Suber.

Recently Jeffrey Kegler
wrote to inform me of some startling new developments on this matter.
Although it previously appeared that the story was probably true,
there was no firsthand evidence that it had actually occurred. The
three witnesses would have been Philip Forman (the examining judge),
Oskar
Morgenstern and Albert
Einstein. But, although Morgenstern apparently wrote up an
account of the epsiode, it was lost.

Until now, that is. The Institute for Advanced Study (where Gödel,
Einstein, and Morgenstern were all employed) posted an account on its
web site, and M. Kegler was perceptive enough to realize that
this account was probably written by someone who had access to the
lost Morgenstern document but did not realize its significance.
M. Kegler followed up the lead, and it turned out to be
correct.

Now came an exciting development. [Gödel] rather excitedly told me
that in looking at the Constitution, to his distress, he had found
some inner contradictions, and he could show how in a perfectly legal
manner it would be possible for somebody to become a dictator and set
up a Fascist regime, never intended by those who drew up the Constitution.

But before I let you get too excited about this, a warning:
Morgenstern doesn't tell us what Gödel's loophole was! (Kegler's
reading is that Morgenstern didn't care.) So although the truth of
story has finally been proved beyond doubt, the central mystery
remains.

The document is worth reading anyway. It's only three pages long, and
it paints a fascinating picture of both Gödel, who is exactly the sort
of obsessive geek that you always imagined he was, and of Einstein,
who had a cruel streak that he was careful not to show to the public.
Kegler's website is also worth reading for its insightful analysis of
the lost document and its story.

Apparently, the "inconsistency" noted by Gödel is simply that the
Constitution provides for its own amendment. Suber says: "He noticed
that the AC had procedural limitations but no substantive limitations;
hence it could be used to overturn the democratic institutions
described in the rest of the constitution." I am gravely
disappointed. I had been hoping for something brilliant and subtle
that only Gödel would have noticed.

M. Padgett also pointed out that the scheme I proposed for
amending the constitution, which I claimed would require only the
cooperation of a majority of both houses of Congress, 218 + 51 = 269
people in all, would actually require a filibuster-proof majority in
the Senate. He says that to be safe you would want all 100 senators
to conspire; I'm not sure why 60 would not be sufficient. (Under
current Senate rules, 60 senators can halt a filibuster.) This
would bring the total required to 218 + 60 = 278 conspirators.

He also pointed out that the complaisance of five Supreme Court
justices would give the President essentially dictatorial powers,
since any legal challenge to Presidential authority could be rejected
by the court. But this train of thought seems to have led both of us
down the same path, ending in the idea that this situation is not
really within the scope of the original question.

As a final note, I will point out what I think is a much more serious
loophole in the Constitution: if the Vice President is impeached and
tried by the Senate, then, as President of the Senate, he presides
over his own trial. Article I, section 3 contains an exception for
the trial of the President, where the Chief Justice presides instead.
But the framers inexplicably forgot to extend this exception to the
trial of the Vice President.

Gödel took the matter of citizenship with great solemnity,
preparing for the exam by making a close study of the United States
Constitution. On the eve of the hearing, he called [Oskar] Morgenstern
in an agitated state, saying he had found an "inconsistency" in the
Constitution, one that could allow a dictatorship to arise.

I suppose the Attorney General could bring some sort of suit in the
Supreme Court that resulted in the Court "interpreting" the
Constitution to find that the President had the power to, say,
arbitrarily replace congresspersons with his own stooges. This would
require only six conspirators: five justices and the
President. (The A.G. is a mere appendage of the President and is not
required for the scheme anyway.)

But this seems outside the rules. I'm not sure what the rules are,
but having the Supreme Court radically and arbitrarily "re-interpret"
the Constitution isn't an "inconsistency in the Constitution". The
solution above is more like a coup d'etat. The Joint Chiefs of Staff
could stage a military takeover and institute a dictatorship, but that
isn't an "inconsistency in the Constitution" either. To qualify, the
Supreme Court would have to find a plausible interpretation of
the Constitution that resulted in a dictatorship.

The best solution I have found so far is this: Under Article IV,
Congress has the power to admit new states. A congressional majority
could agree to admit 150 trivial new states, and then propose
arbitrary constitutional amendments, to be ratified by the trivial
legislatures of the new states.

This would require a congressional majority in both houses. So
Gödel's constant, the smallest number of conspirators required to
legally transform the United States into a dictatorship, is at most
269. (This upper bound would have been 267 in 1948 when Gödel became
a citizen.) I would like to reduce this number, because I can't see
Gödel getting excited over a "loophole" that required so many
conspirators.

Legal status of corpses in 1911 England
As you might expect from someone who browses at random in the library
stacks, I own several encyclopedias, which I also browse in from time
to time. You never know what you are going to find when you do
this.

I got rid of one recently. It was a 1962 Grolier's. Obviously, it
was out of date, but I was using it for general reference anyway,
conscious of its shortcomings. But day I picked it up to read its
article on Thurgood
Marshall. It said that Marshall was an up-and-coming young
lawyer, definitely someone to watch in the future. That was too much,
and I gave it away.

But anyway, my main point is to talk about the legal status of corpses.
One of the encyclopedias I have is a Twelfth Edition Encyclopaedia
Britannica. This contains the complete text of the famous 1911
Eleventh Edition, plus three fat supplementary volumes that were
released in 1920. The Britannica folks had originally planned the
Twelfth Edition for around 1930, but so much big stuff happened
between 1911 and 1920 that they had to do a new edition much
earlier.

The Britannica is not as much fun as I hoped it would be. But there
are still happy finds. Here is one such:

CORPSE (Lat. corpus, the body), a dead
human body. By the common law of England a corpse is not the subject
of property nor capable of holding property. It is not therefore
larceny to steal a corpse, but any removal of the coffin or
grave-cloths is otherwise, such remaining the property of the persons
who buried the body. It is a misdemeanour to expose a naked corpse to
public view. . .